Colin Pomieto - v. -, 2011 SKPC 86

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2011 SKPC 086 Date: June 24, 2011 File: 16 of 2009 Location: Yorkton _____________________________________________________________________________ Between: Colin Pomieto - and - Terry Bodnar, Tracy Bodnar, Randy Bodnar, 101123700 Sask. Ltd. and 533213 Sask. Ltd. Shawn Patenaude For the Plaintiff Douglas Ottenbreit (for the Bodnars) and Ryan Armstrong (for companies) For the Defendants _____________________________________________________________________________ JUDGMENT R.

GREEN , J _____________________________________________________________________________ I. OVERVIEW [ 1 ] Home, home on the range. While it may be true - as further suggested in the state song of Kansas - that on the range seldom is heard a discouraging word, it is also true that disputes over livestock, in such a place, often take on their own unique character and challenge. This is such a dispute; a claim stemming from a cattle deal “gone bad”, to use the vernacular, and based on the tort of

conversion. [ 2 ] In October 2008, the plaintiff, Colin Pomieto (Mr. Pomieto), owned and raised cattle. These cattle were kept at the farm of his father Jerome (Jerry) Pomieto, and were intermingled with his father’s cattle. Some of his cattle were marked with his father’s brand, while some were unbranded. Despite the cattle being intermingled, Mr. Pomieto said that both he and his father were aware who owned each animal, by the appearance of the cattle. [ 3 ] The defendant Terry Bodnar (Mr. Bodnar) came to the Pomieto farm in late October of 2008, looking for scrap metal. Colin Pomieto spoke to Mr.

Bodnar, who was interested in buying some cattle for his son. Mr. Pomieto said he told Mr. Bodnar that some of the cattle belonged to him, and some belonged to his father, and made up a list of the cattle and prices on a piece of cardboard and gave this to Mr. Bodnar. For his part, Mr. Bodnar denied being told by Mr. Pomieto that some of the cattle were his, and not his father’s. [ 4 ] Mr. Bodnar returned to the farm another day and spoke to Jerome Pomieto, in the absence of Colin. A deal was concluded by which Mr. Bodnar agreed to pay, and did pay, $17,000.00 for cattle from the farm. Mr.

Bodnar claims that he understood that all of these cattle belonged to Jerome Pomieto. Colin Pomieto, however, contends that all of his 33 head were included in the 76 head that Mr. Bodnar removed from the Pomieto farm on October 29 and 30, 2008, and denies that he ever agreed to sell his cattle to Mr. Bodnar. [ 5 ] After Mr. Bodnar removed the cattle from the Pomieto farm, with the assistance of his wife the defendant Tracy Bodnar, he kept the cattle at the farm of his son, the defendant Randy Bodnar for a few days.

He then transported most of these cattle to Kelvington Stockyards, where the cattle were sold on November 6, 2008. A cheque for the net sales proceeds, in the amount of $20,230.00, was issued that day in the name of Tracy Bodnar, and was picked up by Terry Bodnar. [ 6 ] Mr. Pomieto claims that all three of the Bodnars, together with the corporate defendants, are liable to him in the tort of conversion, for the cattle belonging to him that were taken from his farm by Mr.

Bodnar, and then sold at the Kelvington Stockyards. [ 7 ] The Kelvington Stockyards are owned by the defendant 101123700 Saskatchewan Ltd., who purchased, and began to operate, this business on September 30, 2008. The previous owner of the business was 533213 Saskatchewan Ltd. I am satisfied that the proper corporate defendant, given the time frames involved in this action, is 101123700 Saskatchewan Ltd. As a result, the claim against 533213 Saskatchewan Ltd. is dismissed. [ 8 ] Mr. Pomieto testified in support of his claim.

He further called, as witnesses, two men who were involved in hauling the Pomieto cattle, Allynn Jurick and Richard Issel, and his mother Betty Pomieto. The defendant 101123700 Saskatchewan Ltd. presented one witness, an office employee from the Kelvington Stockyards named Sheryl Mottram. The Bodnars called three witnesses: Terry Bodnar, Randy Bodnar and Justin Shier, an employee of Terry Bodnar. Tracy Bodnar did not attend the trial because of work commitments. Jerome Pomieto did not attend because of health concerns. II.

A CLAIM FOR CONVERSION [ 9 ] The issue in this case is whether any or all of the Bodnars and the remaining corporate defendant are liable in the tort of conversion to Mr. Pomieto for any of Mr. Pomieto’s cattle wrongfully taken from him by Mr. Bodnar and then sold by the Kelvington Stockyards. [ 10 ] Mr. Justice Herauf, in Helland v. Caragata , 2009 SKQB 143 , outlined the elements of the tort of conversion (at paragraphs 83 and 84): [83] Finally, on the issue of conversion, it is worthwhile to mention the elements that are essential in an action for conversion as set out by Lewis N.

Klar, et al in Remedies in Tort , Volume I, ed. by Linda Rainaldi (Toronto: Carswell, 1987) at 4-14 where the elements are outlined as: (

i) the property must be specific personal property; (ii) the plaintiff must have a possessory interest in the chattel; and (iii) the defendant must commit an intentional wrongful act in respect of the chattel.

[84] The issue of whether an individual being unaware that their actions are illegal arises with respect to the third element - the defendant’s act must be intentional. At 4-18.1, the author of Remedies in Tort goes on to state that: 32. The wrongful act may be done in innocence or in good faith. It is no defence that the defendant did not know nor could by the exercise of any reasonable care have known of the plaintiff's interest in the goods. [ 11 ] This claim is based on the common law relating to conversion.

While the concept of fault is deeply rooted in most areas of the common law of tort, the tort of conversion is a so-called “strict liability” tort. Professor G. Fridman in the Law of Torts in Canada (2 nd Edition, 2002), explained this at page 143: Any person who receives or disposes of personal property without satisfying himself as to the state of the title does so at his peril. Conversion is a tort of strict liability. The fact that the wrongful act was committed in good faith, or in innocence, will not excuse the defendant.

This summarizes the attitude of the law with regard to acts of conversion. [ 12 ] Further, regarding the potential liability of an auctioneer in the tort of conversion, The Canadian Encyclopedic Dictionary (2011), in the

section entitled “Authority of Auctioneer”, states at paragraph 111: If the auctioneer’s principal has no title or no authority to sell the goods, the auctioneer who sells or transfers possession of the goods without the consent of the true owner may be liable at common law for conversion. The fact that the auctioneer was misled into believing the principal owned the goods or that they were free from encumbrances in favour of a third party is no excuse. [emphasis added] III.

SUMMARY OF RELEVANT EVIDENCE Colin Pomieto [ 13 ] Mr. Pomieto said that, when their cattle were sent to market, his practice was to mark his cattle with a green mark as the cattle were loaded onto the truck. This allowed the auctioneer to be aware of which cattle belonged to him as opposed to his father. As an example of this, a statement of account from the Whitewood Livestock Sales from October 21, 2008 (Exhibit P-2) identified at least one head of the cattle he sold as having a green mark on its coat. Mr. Pomieto said this identified his cattle, as opposed to his father’s. [ 14 ] Mr.

Pomieto said he was not prepared to sell his cattle if Mr. Bodnar was not prepared to pay his price, and further said that he made it clear to Mr. Bodnar that two cheques would be required if a deal was reached: one for his father and one for himself. While he could not recall the specific prices he offered to Mr. Bodnar, he said he based his figures on the going auction rate for cattle around that date, in part from having sold cattle just a few days previous. He said the going rate was $450.00 per cow. [ 15 ] He denied that he ever reached an agreement for his cattle with Terry Bodnar, as Mr.

Bodnar claimed the asking price was too high. Mr. Pomieto said, at some point, he became aware that his father reached an agreement with Mr. Bodnar for the sale of his father’s cattle. [ 16 ] During the last days of October, Mr. Pomieto received a telephone call from his mother Betty. She told him that Mr. Bodnar had just picked up the cattle from the Pomieto farm. Mr. Pomieto was alarmed to hear that Mr. Bodnar had taken all of the cattle, including his. [ 17 ] Mr.

Pomieto said, a few days later, he spoke with a brand inspector named Travis Johnson at the Kelvington Stockyards, and discovered that the cattle brought to market by Mr. Bodnar had all been sold, and that a cheque had been issued to Tracy Bodnar. The shipper’s statement of account (Exhibit P-4) from the Kelvington Stockyards, in the name of Tracy Bodnar, shows that a total of 80 cattle were sold on November 6, 2008. Mr. Pomieto said Mr. Bodnar took a total of 76 cattle from his farm, which is accurate, given the cattle manifest completed by Richard Issel, who hauled the cattle (Exhibit P-5).

[ 18 ] On cross-examination by Mr. Armstrong, Mr. Pomieto said that he used his father’s registered brand on his own cattle, as he thought he was allowed to do this. He further said that his plan was to get his own brand at some point. Mr. Pomieto claimed that Mr. Bodnar had attended to the Pomieto farm earlier than arranged to pick up his father’s cattle, and this was why no marks had been placed on the cattle to differentiate between the cattle of father and son. [ 19 ] On cross-examination by Mr. Ottenbreit, Mr.

Pomieto admitted that he was not present when the formal agreement was reached between Terry Bodnar and his father. As a result, he did not hear the discussion between them. Mr. Pomieto further admitted that there was no clear way for Mr. Bodnar to know which cattle belonged to father or son. Once he discovered that his cattle had been misappropriated, Mr. Pomieto contacted the police but they said it was a civil matter. He also tried calling the Bodnars’ house, but Terry Bodnar told him to deal with his father to get the money from him. He denied that he ever gave his father authority to sell his own cattle.

Allynn Jurick [ 20 ] Mr. Jurick operates a cattle hauling business and has hauled cattle for Jerome Pomieto. He was aware that both Colin Pomieto and Jerome Pomieto owned cattle separately, and was further aware of the method used when cattle from both men were taken to market. He said this was by placing a green mark on the cattle to designate the owner. He was not involved with hauling the cattle purchased in the Bodnar transaction. Richard Issel [ 21 ] Mr. Issel is, as well, in the cattle hauling business. In late October 2008, Terry Bodnar hired him to move cattle from the Pomieto farm to the farm of Mr.

Bodnar’s son Randy, at Jedburgh. In connection with that task, he prepared and completed a series of livestock manifests (Exhibit P-5) which shows the cattle he moved from the Pomieto farm to the Randy Bodnar farm on October 29 and 30, 2008. [ 22 ] When asked whether there was any dispute when the cattle were loaded, Mr. Issel said that, after the second load, Jerome Pomieto and Terry Bodnar were concerned that some of the cattle were not properly tagged. He said there was also a dispute on the third or fourth load about how many cattle were being taken.

In total, he took two loads on October 29, and three loads on October 30. He said the total cattle he hauled was 76, with 58 heifers and 18 calves. He was clear that the dispute between Terry Bodnar and Jerome Pomieto during the hauling of the cattle was whether Terry Bodnar was taking too many cattle. Betty Pomieto [ 23 ] Betty Pomieto is married to Jerome Pomieto. She said that her son Colin raised cattle separately from her husband. She was present when the cattle were loaded by Terry Bodnar. She said, on the last day of loading, that Jerome Pomieto was present initially, but then had to go to town.

As a result, she was present when the cattle were loaded. She spoke to her son Colin after the cattle had been loaded, and told him that Mr. Bodnar had only left one cheque, for Jerome Pomieto, and had not left a separate cheque for Colin. Travis Johnson [ 24 ] Travis Johnson was employed by the Saskatchewan Government as a brand inspector at the Kelvington Stockyards in October of 2008. In that capacity, he reviewed two livestock manifests which accompanied cattle delivered to the stockyards (Exhibit P-6). Each indicated the owner of these cattle to be Tracy Bodnar.

He noted that the brand appearing on a number of these cattle was a brand registered to Jerome Pomieto.

[ 25 ] I accept, as a result of finding this brand, Mr. Johnson called Tracy Bodnar, the person listed as the owner of these cattle on the manifests. In his supplemental notes, he notes this phone call happened on November 4, 2008, and that Ms. Bodnar told him that the cattle were purchased from Jerry Pomieto five weeks previous. While Mr. Johnson obviously had the power to delay the sale of cattle if there was a question about ownership, I accept that, based on the conversation with Ms.

Bodnar, he was not concerned about who owned these cattle. [ 26 ] The same notes further indicate that, on November 6, 2008, Mr. Johnson spoke by telephone with Jerome Pomieto, who told him that the Bodnars had taken seven of the cows belonging to his son. Mr. Johnson then made inquiries and discovered that the sale of the cattle had already occurred, and that a cheque in the name of Tracy Bodnar had been released. [ 27 ] On cross-examination by Mr. Armstrong, Mr. Johnson stated that under The Animal Products Act , a person who is not a livestock dealer must wait 30 days before selling cattle they have purchased.

In this case, however, Tracy Bodnar told him they had purchased the cattle five weeks previous. Sheryl Mottram [ 28 ] Ms. Mottram is employed by the Kelvington Stockyards and was the employee who issued the cheque to Tracy Bodnar in early November 2008. On November 6, 2008, the Kelvington Stockyards sold 80 cattle which she understood were owned by Tracy Bodnar (as per Exhibit P-4, the statement of account in her name). The net payout was $20,230.25. She said the cattle came into the stockyard on November 4, 2008 and were sold on November 6, 2008. [ 29 ] Ms.

Mottram said, the practice used by the stockyards is once cattle, along with a manifest, are received, the cattle are viewed by a brand inspector. That inspector can then pass the manifest on to her, and the cattle are then sorted, awaiting sale. After the sale has occurred, she then draws up a cheque to the person listed as the seller, and provides this to the seller in person or by mail. [ 30 ] In this case, she made the cheque payable to Tracy Bodnar. She recalled speaking to Jerome Pomieto by phone after the sale.

She told him what had transpired, and that the cheque had already been issued in the name of Tracy Bodnar. She did not recall speaking to the brand inspector about these cattle. Terry Bodnar [ 31 ] Mr. Bodnar buys and sells scrap metal and used equipment for a living. In October 2008, he came into the Pomieto farm looking for scrap metal. There he spoke to Jerry Pomieto. They discussed Mr. Pomieto’s livestock. At that point, he said Jerry Pomieto claimed to be in difficult health and said he was thinking about selling his livestock. Mr.

Bodnar said three to five days later he returned and spoke again to Jerry Pomieto. There was further discussion about the cattle but no prices mentioned. He then returned a third time, and met with Jerome Pomieto and his son Colin. [ 32 ] Mr. Bodnar denied that Colin Pomieto ever said that some of the cattle were his, and claimed the only concern Colin had was whether or not Mr. Bodnar would be able to make good on payment. He said, after his third visit, he checked into the brand he saw on some of the Pomieto cattle and discovered that it was registered to Jerome Pomieto. [ 33 ] Mr.

Bodnar said he made a fourth visit to the farm, and at that time reached an agreement that he would buy all the cows and calves (except three bulls) for $17,000.00. A receipt (Exhibit D-2) dated October 28, 2008 was drawn up. This stated: Sold to Terry Bodnar all cows and calves and heifers for the sum of $17,000.00. Paid in full by cheque number 414. [ 34 ] The receipt was signed by Jerry Pomieto. Mr. Bodnar denied that he ever agreed to pay anything to Colin Pomieto, and restated that he was never told any of the cattle belonged to Colin.

He said the only reference that Colin made to money was that he was concerned he would not be paid by his father for the work Mr. Pomieto had done for his father. He said that there was a piece of cardboard produced to him by Jerry Pomieto, which referred to different cattle, but denied that it contained any calculations.

[ 35 ] Mr. Bodnar said, when he loaded the cattle at the Pomieto farm, a dispute arose as to whether he was taking more cattle than agreed to. He assured Jerome Pomieto that three bulls, belonging to Jerome Pomieto, would remain at the Pomieto farm as agreed. [ 36 ] Mr. Bodnar denied that his wife Tracy was involved in the deal in any way, other than attending with him when the cattle were picked up. He said that the livestock manifests were to be made out in his name, but for some reason that did not happen.

He explained her name appearing on the manifests, which arrived with his cattle at the stockyards (Exhibit P-6), by saying that the truck driver had called, while en route to Kelvington, and Tracy had spoken to that truck driver. The call was then disconnected, and Terry Bodnar did not have a chance to speak to the truck driver. Mr. Bodnar assumed that the truck driver put his wife’s name on the livestock manifest based on his telephone contact with her. [ 37 ] Mr. Bodnar said that he had made arrangements to take the Pomieto cattle to his son’s farm at Jedburgh.

He then discovered that there was no source of feed for the cattle there, as a neighbour who had promised the feed could not now provide it. As a result, he contacted Kelvington Stockyards, and Mr. Peterson, from that stockyard, came out and viewed his cattle. He made arrangements to have the cattle taken to Kelvington, and then delivered 80 head, which were all sold. He said, of the 80 head, 16 belonged to him prior to purchasing the Pomieto cattle. Only 64 head were from the Pomieto purchase. He said that was because, of the 76 cattle purchased from Mr.

Pomieto, 12 were destroyed after the cattle reached his son’s farm, given their poor condition. [ 38 ] Mr. Bodnar said that his son Randy was employed by him, but took no

part in this livestock deal. He said Justin Shier has, as well, worked for him as an employee and was present when he reached an agreement for the cattle with Jerome Pomieto. [ 39 ] In cross-examination by Mr. Patenaude, Mr. Bodnar admitted that a copy of the bill of sale in possession of Mr. Patenaude did not contain the figure 51, which appeared on Mr. Bodnar’s bill. He also admitted that only one of the livestock manifests had the first name crossed out as owner being replaced by Tracy, as the other manifest contained her name (Tracy Bodnar) as owner in an unaltered form. [ 40 ] In cross-examination by Mr.

Armstrong, Mr. Bodnar denied that he had made any profit off the sale of these cattle at the stockyards. He said that the money over and above what he paid to Jerome Pomieto went to the cost of hauling the cattle and the cost of his employees. He also said there were other deductions made by the stockyards, including the commissions paid. He denied knowing that, as he was not a livestock dealer, he had to hold the cattle for 30 days before selling them. Randy Bodnar [ 41 ] Randy Bodnar is a scrap buyer and labourer, and the son of Terry Bodnar. He denied having any

part in the deals made by his father for livestock, including the deal with Jerome Pomieto. He said he kept animals at his farm that belonged to his father, and was paid wages by his father for helping out with the purchase from Mr. Pomieto. Justin Shier [ 42 ] Mr. Shier works part-time for Terry Bodnar, and went with him to the Pomieto farm in October of 2008. He recalled being there when Jerome Pomieto and Mr. Bodnar were speaking, and that a receipt was written out. He did not recall the discussion between them.

He was present when the cows were picked up and taken away from the Pomieto farm, and it was his understanding that all the cows were to be taken. IV. ANALYSIS The liability, if any, of Terry Bodnar

[ 43 ] I am satisfied, and find, that some of the cattle removed from the Pomieto farm by Mr. Bodnar on October 29 and 30, 2008 belonged to Colin Pomieto, and not to Jerome Pomieto. That is because:

(1) While the presence of a brand on cattle is prima facie proof of ownership in the name of the person to whom the brand is registered (as per s. 15 of The Animal Identification Act of Saskatchewan), I accept Colin Pomieto’s evidence that not all of his cattle were branded, and that, in 2008, he was intending to get his own brand registered in the not-too-distant future;

(2) I accept the evidence of Betty Pomieto and Allynn Jurick that Colin owned cattle separately from his father;

(3) Colin Pomieto’s statement about how his cattle were distinguished from his father’s - by a green mark - is credible given that an invoice from Whitewood Livestock Sales (Exhibit P-2) indicates that at least one of Colin Pomieto’s cattle, delivered by Mr. Jurick, had a green mark; and

(4) I accept Colin Pomieto’s explanation that he did not mark his cattle, before Mr. Bodnar arrived to pick up the cattle from his farm, because Mr. Bodnar arrived a day or more earlier than expected. [ 44 ] I am, as well, satisfied that Colin Pomieto told Mr. Bodnar that some of the cattle at the Pomieto farm were his, and, further, that he wanted to be paid for his own cattle, at the price he wanted, separate and apart from his father. Mr. Pomieto said he wrote down a list of his cattle on a piece of cardboard, and left it with Mr. Bodnar. Mr.

Bodnar recalled receiving the cardboard but said it was from Jerome and not from Colin Pomieto. I found Mr. Bodnar’s account on this to be vague, and I am not satisfied he accurately recalls who gave him the cardboard, what was on it or when this happened. [ 45 ] Given these findings, I am further satisfied that, when Mr.

Bodnar purchased all of the cattle herd (except three bulls), from Jerome Pomieto on October 28, 2008, he knew that some of these cattle belonged to Colin Pomieto and that Jerome Pomieto did not have the authority to sell all of the 76 cattle he subsequently removed from the Pomieto farm. [ 46 ] But how many of these cattle belonged to Colin Pomieto? In his evidence Mr. Pomieto claimed this number to be 33. Mr. Johnson’s evidence was that, on November 6, 2008, he spoke by telephone to Jerome Pomieto, who said Mr. Bodnar had taken seven of his son’s cattle.

While that evidence is hearsay, s. 28.1 of The Small Claims Act, 1997 , allows me to consider such evidence if it is credible and trustworthy. [ 47 ] As Mr. Johnson was, in my view, the closest to a disinterested witness in this action, being employed by the government and not the stockyards, I accept his evidence about what Jerome Pomieto said. Further, I find this to be the best evidence about how many of Colin Pomieto’s cattle were taken. I am satisfied that Jerome Pomieto was in a better position than his son to state the number of his son’s cattle taken by Mr. Bodnar.

That is because of: (1) the absence of any documentation or further evidence on this question from the younger Pomieto; (2) the reality that Jerome Pomieto was more experienced than his son in raising cattle, and, indeed owned the brand used by his son; and (3) the fact that Jerome Pomieto was the person who reached an agreement with Mr. Bodnar, and who was present for at least some of the loading of the cattle. [ 48 ] I am further satisfied that the best evidence on the value of Colin Pomieto’s cattle came from Mr. Pomieto, when he said the going rate for his cattle, in late October 2008, was $450.00 a cow.

While the value of any head of cattle depends on many factors, including weight, that figure is roughly in line with the sale prices listed on the statement of account from the Kelvington Stockyards (Exhibit P-4). As a result, I am satisfied, and find, that Mr. Bodnar took seven of Colin Pomieto’s cattle, valued at $3,150.00, from the Pomieto farm on October 29 and 30, 2009. [ 49 ] As noted above, the tort of conversion requires a “wrongful act”. I am satisfied that it has been proved that Mr. Bodnar committed such

an act. This was constituted in two ways. First, as I have found, he removed cattle from the Pomieto farm that he knew belonged to Colin Pomieto and that he knew Jerome had no authority to sell. Second, and as significant, he transported cattle to the Kelvington Stockyards, and sold them, without lawful authority. That is because he did not comply with The Livestock Dealers Regulations, 1995 of The Animal Products Act .

[ 50 ] Under s. 3(1) of the Regulations , no one without a licence (issued under the Regulations ) can carry on business as a “livestock dealer” or a “livestock agent”, which are defined as: “livestock dealer” means a person who buys or sells livestock or who offers to buy or sell livestock in Saskatchewan, on his or her own account or on account of some other person, whether he or she buys directly from producers or from others having livestock for sale, regardless of the use to which the livestock is to be; “livestock agent” means an agent or representative of a livestock dealer; [ 51 ] Section 4(1) of the Regulations , however, provides:

(1) Notwithstanding

section 3, no licence is required by a person who operates a farm or ranch and who purchases or sells livestock solely in connection with that operation if: (

a) the person retains title of each head of livestock purchased for at least 30 days from the date of purchase; or (

b) the minister gives permission for the livestock to be sold before the 30-day period mentioned in clause (

a) expires. [ 52 ] There was no evidence Mr. Bodnar had any licence to sell these cattle or that he operated a ranch or farm. Nor was he aware of any of these provisions. That means the sale of the cattle he sent to the Kelvington Stockyards was not done lawfully. [ 53 ] In total, I find that Terry Bodnar committed an intentional wrongful act in relation to the personal property of Colin Pomieto (seven of his cattle), and that he is liable to Mr. Pomieto, in the tort of conversion, in the amount of $3,150.00.

The liability, if any, of Tracy Bodnar [ 54 ] Regarding Tracy Bodnar, the wife of Terry Bodnar, while she was not involved in the original agreement to purchase these cattle between her husband and Jerome Pomieto, she became involved in the transaction shortly thereafter. She was present when the cattle were loaded at the Pomieto farm and her name appears as the owner of the cattle on both manifests delivered to the Kelvington Stockyards with the cattle. As well, she signed both manifests as the owner or the authorized agent of the owner (Exhibit P-6).

While one of the manifests has another first name crossed out in the “owner” section, and “Tracy” inserted (#273757), there is no question that her name appears, without alteration, in the “owner”

section of the other manifest (#441730). [ 55 ] As there is no evidence before the Court to suggest she was the owner of these cattle, I conclude that Ms. Bodnar was involved with the sale of these cattle in a way which, like her husband, was not lawful. There was no evidence she held a licence to sell these cattle, or that she waited 30 days after the cattle were purchased (if in fact she resided on a farm or ranch, which was not suggested). Further, she clearly misled the stockyards on who the true owner of these cattle was.

As a result, I find that Tracy Bodnar committed an intentional wrongful act in relation to the personal property of Colin Pomieto (seven of his cattle), and is therefore liable to him, in the tort of conversion, in the amount of $3,150.00, jointly and severally with Terry Bodnar. The liability, if any, of Randy Bodnar [ 56 ] Regarding Randy Bodnar, I am not satisfied that he played any

part in the purchase, transport or resale of these cattle. His

only involvement was allowing his father to store the cattle at his place, over what turned out to be only four to five days. Given hisminimal involvement, I am not satisfied, on a balance of probabilities, that he committed an intentional wrongful act regarding Mr.Pomieto’s cattle. The action in conversion against Randy Bodnar is, therefore, dismissed. The liability, if any, of the Kelvington Stockyards [57] The most challenging question in this case is whether the corporate defendant, the Kelvington Stockyards, is liable in the tortof conversion.

I am satisfied that no one acting on behalf of Kelvington Stockyards knew that some of the cattle sold belonged to ColinPomieto, and not to Tracy Bodnar, the owner listed on the manifest, until after the cattle were sold and the cheque had been released. [58] On behalf of the Kelvington Stockyards, Mr. Armstrong raised three defences. First, he argued that his client had noknowledge that Tracy Bodnar was not the owner of the cattle sold, and, as a result, committed no intentional wrongful act.

Byimplication, this argument suggests that the stockyards were entitled to rely on the determinations as to ownership made by the brandinspector Mr. Johnson, under s. 14(1) of The Livestock Inspection and Transportation Regulations, 1978. [59] The case of Nilsson Bros. Inc. v. McNamara Estate, 1992 ABCA 42 , [1992] 3 W.W.R. 761 (Alta. C.A.) is relevantto this first defence. In that case, cattle belonging to the estate of McNamara were stolen. The thief took the cattle to an auctioneer(Nilsson Bros.) who sold the cattle.

Neither the purchasers or the auctioneer knew that the seller (the thief) did not own the cattle.

Thetrustees of the estate sued both the auctioneer and the purchasers in conversion. [60] With a similar statutory scheme existing in Alberta (in 1992) to that existing in Saskatchewan in 2008 (and continuing today)under The Livestock Inspection and Transportation Regulations, 1978, the Alberta Court of Appeal in Nilsson Bros. concluded that thedecision of the Alberta brand inspector to release the cattle for sale, and hence the determination of ownership made by that inspector,did not relieve the obligation of an auctioneer in an action for conversion.

In particular, the Court said at para. 12: There is nothing in the Act to suggest that a determination of ownership by an inspector in any way affects the rights or obligations of anowner, an auction market or a purchaser in an action for conversion. There is nothing to suggest an intention to change the common law.Had the legislature wished to make a determination of ownership by an inspector conclusive, it could easily have done so.

It did not. [61] Similarly, I can find no provision in The Livestock Inspection and Transportation Regulations, 1978 to suggest that adetermination of ownership by an inspector in any way affects the rights or obligations of an owner, an auction market or a purchaser inan action for conversion. As a result, the determination by Mr. Johnson, that Tracy Bodnar was the owner of these cattle, does not serveas a defence to the Kelvington Stockyards in this action for conversion. [62] The second defence raised by Mr. Armstrong, however, in my view stands on a stronger footing.

This defence relates to s. 10of The Livestock Dealer Regulations, 1995. Mr. Armstrong argued that his client was obligated to make payment of the sales proceedsto the “contributor”, here Tracy Bodnar, within three days under s. 10(1) of The Livestock Dealer Regulations, 1995, and, as a result,could not have committed an intentional wrongful act in so doing. Further, he argued that Mr. Pomieto, upon realizing that he had notbeen paid for his cattle, could have provided a statutory declaration to the provincial government under s. 10(3) of The Livestock DealerRegulations, 1995, setting out his loss.

Subsections 10(1) and (3) provide: 10(1) ... a livestock dealer shall ensure that the contributor of livestock is paid for all livestock purchased or sold by the livestock dealerwithin three days, excluding weekends and statutory holidays, from the date: (

a) the livestock dealer purchases or takes possession of the livestock; or (

b) the price is calculated in rail grade settlement or price pooling.

(3) Where a livestock dealer fails to make payment for livestock purchased or sold in accordance with subsection (1) the contributormay, at any time within 30 days of the purchase or sale, or any further period that may be authorized by the minister, provide a statutorydeclaration to the minister declaring: (

a) the value and description of the original loss; (

b) the amount recovered by any other action; and

(

c) the action taken to recover the portion of his or her original loss still unpaid. [ 63 ] A “contributor” is defined in s. 2(

d) of the Regulations as “a person who sends livestock to a market for sale or for entry into a feedlot, or who offers livestock for sale, transport, or slaughter”. As Mr. Pomieto did not send any of these cattle to market or offer them for sale, he does not qualify as a “contributor” respecting this sale, and could not have made the statutory declaration referred to.

But is the defendant stockyards relieved from liability in conversion because of a statutory obligation to pay? [ 64 ] In Nilsson Bros. , the auctioneer argued that it was not liable in conversion as it was required or authorized to pay the person named as the owner in the livestock manifest (in Nilsson Bros. that person had actually stolen the cattle).

It was argued this authorization came from s. 46(3) of The Livestock Brand Inspection Act of Alberta, which provides: A market operator who, without authorization in writing from an inspector, makes the proceeds of a sale payable to a person by any name other than that shown on the relevant livestock manifest is guilty of an offence. The Alberta Court of Appeal, however, found that this provision was a statutory prohibition and not any form of statutory requirement or authorization that the person named on the manifest be paid.

As a result, that subsection did not act as a defence to the auctioneer in an action for conversion. I take from the Court’s decision, by implication, that had s. 46(3) been interpreted as a statutory requirement and authorization, rather than a statutory prohibition, a defence to conversion on behalf of the auctioneer would have existed. [ 65 ] The statutory provision in this case, however, is clearly not a prohibition.

Section 10(3) of The Livestock Dealer Regulations, 1995 provides that the livestock dealer (here the Kelvington Stockyards) shall ensure that the contributor of livestock (here, Tracy Bodnar) be paid for all livestock purchased or sold by the livestock dealer within three days. I find this to be a statutory authorization and requirement that the contributor be paid within three days.

As these cattle had been cleared and released by the brand inspector, the Kelvington Stockyard were authorized and required, by this subsection, to make payment of the proceeds to Tracy Bodnar, the “owner” listed on the two livestock manifests. [ 66 ] Given this statutory authorization and requirement, I am not satisfied that the Kelvington Stockyards committed any intentional wrongful act by paying Tracy Bodnar. As a result, I am not satisfied on a balance of probabilities that the Kelvington Stockyards (101123700 Sask. Ltd.) is liable to Mr. Pomieto in the tort of conversion.

The action in conversion against 101123700 Sask. Ltd. is, therefore, dismissed. [ 67 ] Given my acceptance of the second defence raised by the Stockyards, it is not necessary for me to decide whether the third defence raised by Mr. Armstrong applies: that Mr. Pomieto was negligent, in a contributory sense, by not branding his cattle. Were I to have decided that issue, however, I would not have been satisfied on a balance of probabilities that he was negligent to any extent. Although Mr.

Pomieto did not register and use his own brand, I am satisfied that he developed his own method of marking his cattle, so as to indicate to others which head belonged to him, as opposed to his father. I am further satisfied that he would have so marked his cattle, to distinguish them for Mr. Bodnar, if Mr. Bodnar had not arrived earlier than arranged to pick up the cattle from the Pomieto farm. V. CONCLUSION [ 68 ] Back on the range, whether my words are heard as “discouraging” will be left to the parties. For the reasons stated above:

(1) Mr. Pomieto shall have judgment against Terry Bodnar and Tracy Bodnar, jointly and severally, in the amount of $3,150.00, together with interest on this amount pursuant to The Pre-Judgment Interest Act from October 30, 2008 (the date upon which the last of the cattle were taken by the Bodnars from the Pomieto farm) and with the costs of issuing this action ($100.00); and

(2) The claims against Randy Bodnar, 101123700 Sask. Ltd. and 533213 Sask. Ltd are dismissed, without costs.

R. Green, J